Tenenbaum's lawyer, well-known Harvard Law professor Charles Nesson, wants the Supremes to understand that the industry's "litigation assault" on people like Tenenbaum is "procedurally unfair and profoundly unethical.” Such damage awards, Nesson continues, seek to:

punish [Tenenbaum] beyond any rational measure of the damage he conceivably caused, not for the purpose of recovering compensation for actual damage caused by him, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using the Internet, and so frightening for parents and teachers of students using the Internet, that they will somehow reverse the tide of the digital future.

As part of its massive legal campaign against online file-swapping, the Recording Industry Association of America [RIAA] sued nearly 20,000 people during the middle part of the last decade. Only two took their cases all the way to a trial and verdict. The first was Jammie Thomas-Rasset in Minnesota; Tenenbaum, from Massachusetts, was the second. In both cases, judges overturned the absurd verdicts (Thomas-Rasset owed $222,000, $1.92 million, and then $1.5 million after her three trials, respectively) and said that anything above $2,250 per song had entered "monstrous and shocking" territory.

The recording industry, keen to avoid this as a precedent, appealed both cases. The Thomas-Rasset case continues at the appellate level; the Tenenbaum case was sent back to the trial court last September with a demand that Judge Nancy Gertner simply cut the $675,000 down to size using a common-law process called "remittitur" rather than concluding (as she did) that the award was so disproportionate to harm as to be constitutionally impermissible.

This might sound like a technicality—in both cases, Tenenbaum's payout would be cut to $67,500—but it has a serious implication. If Judge Gertner "remits" the award, the labels could choose to have another trial against Tenenbaum. If Judge Gertner reaches the constitutional question, the trial stage ends.

These aren't hypotheticals; this happened in the Thomas-Rasset case. After a $1.92 million verdict was slashed using remittitur, the labels took Thomas-Rasset to trial once more. It's an expensive, lengthy process, and one that's probably pointless. In the four trials to date on this particular issue, no jury has ever come in beneath the upper bound set by the judges. (The juries are told nothing of previous judgments or of the judge's own rulings in these matters.)

Nesson complains that the requirement to conduct remittitur first simply helps those with enough money to see a lawsuit through to the end. “The deployment of remittitur as a means of fending off constitutional issues empowers the copyright-holding corporations to subject any individual who is seeking to protest the unconstitutionality of their settlement methods to years and then further years of endless litigation and repeated trials,” he wrote to the Supreme Court.

The whole issue might seem moot (except for Tenenbaum), since the recording industry has dropped its mass lawsuit campaign. But Nesson notes that, in the last few years, scores of others have adopted similar tactics, especially when it comes to pornographic films.

Nesson tells me that the Supreme Court will decide later this week whether it will hear Tenenbaum's appeal.